The Trial of Saddam Hussein
By Dr. Abdul-Haq Al-Ani
Paperback: 421 pages
Publisher: Clarity Press (May 1, 2008)
ISBN-10: 0932863582
ISBN-13: 978-0932863584
Spurred by his abhorrence of imperialism and to better equip himself, Abdul-Haq Al-Ani studied law in Britain. The barrister then applied his knowledge to become, temporarily, part of Saddam Hussein’s defense team and to write The Trial of Saddam Hussein, and even though the book profoundly, cogently, and — on its face — irrefutably exposes the injustice of the trial of Iraqi President Saddam Hussein and his co-defendants, it exposes much, much more.
Al-Ani’s analysis of the trial of Hussein is based in a system of entrenched injustice imposed by the imperialist, occidental world. For the imperialist system, with collaborationist Iraqis, was not conjured into existence to “try” and condemn Hussein. Al-Ani describes an extant, hypocritical system wherein law applies to the victims of imperialists, but imperialists hold themselves above the law. “A state cannot operate internationally and rely on international law and the UN, but still be able to excuse itself from being bound by whatever it chooses to reject. This is an unsustainable argument,” reasons Al-Ani.
The United States is a testament to how preponderent prowess in violence sets a “nation” beyond the reach of the law.
So, historically, any claim to moral authority by the US (that is, being a self-proclaimed beacon on the hill, a human rights leader, or a leader of the free world, etc.), in an effort to bolster or garner legitimacy for its “adventurism” abroad, is preposterous and nugatory.
Al-Ani details the illegality that underlies the invasion of Iraq — a prima facie “supreme international crime” so reprehensible that the Nuremburg Tribunal said it differs from other war crimes in that “it contains within itself the accumulated evil of the whole.”
The barrister accuses the US-UK of genocide. The genocide dates back to at least 1991 when the US formed a coalition to oust Hussein’s invasion force from Kuwait, a state whose borders are an imperialist creation and, therefore, according to Al-Ani, violable. Ergo, the invasion of Kuwait was caused by British imperialists.
Al-Ani gives an Arab perspective on the Ba’ath Party (divulging that he is a former member) and its importance to the citizens of Iraq and wider afield in the Middle East. The party captured the nationalist aspirations of the people and attracted those people opposed to the imperialist-Zionist usurpation of Palestine.
As for life under the rule of Saddam Hussein, Al-Ani asserts that Iraqis were safe as long as they did not cross the “red line”; that is, they did not act or conspire against the Ba’ath Party or state.
Al-Ani does not focus on whether Hussein was a good man or bad man. He is focused on adherence to the norms of law and justice. Hussein does receive criticism, however, especially for his “calamitous miscalculation” to attack Iran — a “gift to imperialism.” I wonder what Al-Ani would say if someone wrote that same words to describe the attack of Iraq?
Al-Ani situates in time. He presents a picture of a thriving Iraq in 1991: a surfeit of electricity; clean, well, equipped hospitals and clinics free to all Iraqis; clean water; no illiteracy; free education from elementary school right through graduate school; home-based industries; a good highway system; and a real estate bank to provide low-interest loans for low-income families (wiped out by Paul Bremer). Compare this to Iraq today where the electric grid still has not been fully restored.
What permits such carnage and destruction? Al-Ani sees an inability to recognize and embrace diversity. Eurocentrism,
Militaristically inclined types proffer that a so-called humanitarian intervention can justify the violation of national sovereignty. Here Al-Ani sides with law professor Francis Boyle who described humanitarian intervention as “a joke and a fraud.” Obviously, for humanitarian interventions to have any moral or legal legitimacy, they must not be capricious nor unilateral; otherwise, they can function criminally as pretexts for imperialism.
Surely no one would suggest there was anything humanitarian in the annihilation of Fallujah. Here again Eurocentrism is exposed. After all, how would Occidentals respond if a Christian or Jewish town in the West were obliterated?
International Law
Al-Ani sees two legitimate sources of international law: the United Nations General Assembly and treaties. He has scorn for the International Criminal Court (ICC) for reasons such as its Article 16, which defers to the Security Council, undermining ICC independence and making it a “judicial tool of imperialism” as well as its inability to agree on a definition for the crime of aggression. Al-Ani does not mince words when he notes “the great silence of the jurists of the Anglo-Saxon world, which almost amounts to an acquiescence in the crimes” of aggression.
The invasion was illegal under the UN Charter. Al-Ani argues that since Iraq was not a threat to peace, it would have been impossible to invoke a resolution of attack against it. It violates the raison d’être of the organization. Nevertheless, the UN Security Council passed Resolution 1472 which instead of condemning the attack remained seized of the matter — pointing, according to Al-Ani, to the futility and incompetence of the UN, an understandable view given what has transpired.
Arresting Saddam Hussein
Al-Ani notes, “It is ironic that the US/UK intended to try top Iraqi officials for crimes of stipulated Iraqi laws while at the same refusing to accept the jurisdiction of the prevailing Iraqi law.”
He observes that Article 131 of the 2005 Iraqi Constitution calling for the continuation of the Tribunal was without legitimate legal force since it was implemented under occupation. Consequently, there was no legal jurisdiction for trying Saddam Hussein. Among the problems with the arrest of Saddam Hussein:
- a head-of-state does not lose authority at hands of occupier;
- a head-of-state has legal immunity; and
- Hussein could not be classified as a POW.
The Iraqi High Tribunal
Among the problems Al-Ani finds with the Iraqi High Tribunal:
- De-Ba’athication (an act which constitutes a crime against humanity according to the ICC’s Article 7) removed all Ba’athist judges in Iraq, yet Article 43 of the Hague Convention forbids this.
- What process was used to select judges? Who were the judges? The anonymous judges were secretly trained in Britain. Al-Ani asks, “[W]hy should an Iraqi tribunal with allegedly Iraqi judges and operating under Iraqi law be trained by private contractors who have no knowledge of Iraqi law?”
- Judicial independence: the Iraqi Special Tribunal, later renamed the Iraqi High Tribunal (IHT), was clearly set up by the occupiers. Al-Ani argues that the trial was completely controlled by the US through the Regime Crimes Liaison Office (RCLO) set up by the US Department of Justice and funded by the US Congress.
- Preventing international lawyers to aid Hussein’s defense — a violation of the legal concept Equality of Arms: “The right of the accused to legal counsel is so universal that it is difficult to see how a court would admit evidence secured when the accused was not in receipt of legal advice.”
- Security for the defense: defense lawyers were murdered, forced to flee Iraq, and intimidated; so-called Human Rights Watch (HRW) admitted as much.
- Defense and witnesses faced the possibility of civil suits for actions and words in court.
- The collapse in security made finding willing defense witnesses difficult: “The inequality between the blanket anonymity granted to the prosecution witnesses and the exposure of the identity of one potential defense witness clearly demonstrates the inequality of arms.”
- Defendants were prevented the right to private and confidential legal counsel.
- Switching chief justices; the International Center for Transitional Justice (ICTJ) charged that this was a “blatant attack on the independence of the judiciary.”
- The court-appointed defense’s performance was “poor”; they turned down right to cross examine witnesses often or were denied cross-examination by the court.
- Important evidence was withheld from the trial and defense.
- It was seven months into trial before charges were formally laid against Hussein and co-defendants.
- Overt judicial bias: hearsay admitted; court relied on witness testimony when documentary evidence was available; transmission of defendant’s spoken words was cut off during trial; the court refused to respond to defense requests.
- Closing the defense’s case summarily.
- The appeal process was a mockery: 30 days to present an appeal, and no right to challenge the legality of the IHT whose statute Al-Ani finds riddled with errors and flagrant grammatical mistakes, indicating that it was a translation from English. Al-Ani wonders why HRW and the ICTJ did not complain.
Why Dujail?
The Tribunal made events occuring in the town of Dujail, a stronghold of the Iranian-backed Da’wah Party, the first case to be tried against Saddam Hussein and his top officials. In 1982, assassins from Dujail ambushed Hussein’s motorcade. Hussein was accused afterwards of ordering a crackdown in which 148 of the town’s men were sentenced and executed. It is not the most heinous crime alleged of Hussein, yet that is where the Tribunal began and ended.
Al-Ani writes that the perpetrators involved in the assassination admitted to acting on orders from Iran, a treasonous act during war, which then raged between Iraq and Iran. He sees no relevance of Geneva Conventions to the Dujail case. Yet, even some western-based progressivist writers and corporate media critics were quick to share the corporate media line on Hussein’s guilt over events at Dujail.
Even though during the trial, Hussein had accepted sole responsibility for the killings at Dujail, the IHT was hard-pressed to support its verdict. The ICTJ wrote, “The Dujail verdict was delivered in a 40-minute session that gave little indication of the judgment’s detail and reasoning.”
Nonetheless, “Even if Saddam Hussein accepted responsibilty and knew of the punishments the culprits were likely to and did incur, including death by hanging, it does not make him anymore of a criminal than Governor George Bush signing the death warrants of criminals in Texas, some of whom turned out to be innocent…” Also, an admission itself was insufficient to convict since, Al-Ani argues, evidence of the wrongdoing by the Revolutionary Guard and demonstrating Hussein’s knowledge of this was a necessary condition.
Al-Ani concludes that the Tribunal failed to establish that Hussein was criminally responsible for Dujail. Of the judgment, Al-Ani finds, “It is difficult to resist the conclusion that the judgment was written in English by the US/UK legal advisors in the RCLO in exactly the same way the defense was written by an appointee of the RCLO and translated into Arabic.”
He criticizes HRW, which “after spending months observing the trial, did not arrive at the only conclusion possible, namely that the Tribunal and those who served in it had been chosen because they were convinced of the guilt of the accused …”
“The most bizarre thing about this trial is that the accused were sentenced to death before the court argued the reasons for it in its judgment.” An appeal by the defense was rejected.
Of the appeal judgment, Al-Ani says, “[T]he lack of a single piece of evidence being identified to support its judgment, the misunderstanding of the principles of international law and the total indifference to the principles of justice that transcend all laws, international and domestic. These all demonstrate the incompetence of the IHT and a total failure of justice.” Thus had the US-UK obtained a “victor’s justice by proxy.”
Saddam Hussein was sentenced to hanging. Al-Ani objects that the basis for carrying out a death sentence was flimsy and illegitimate; moreover, it was disrespectfully pushed through on a Sunni holy day “with the connivance of an illegal occupying entity.”
Al-Ani finds “the sole contribution of the Tribunal is that it sets a precedent for trying other heads of state who challenge US supremacy…” He considers George W. Bush and Tony Blair the most obvious candidates to be tried under this precedent. Instead the ICC is pursuing prosecution of a sitting head-of-state in Sudan, which has aggressed no other country.
The Trial of Saddam Hussein is densely packed with legal arguments (though eminently readable and comprehensible) and fastidious conclusions, and a simple book review cannot do justice to the plethora of rationales that Al-Ani provides. At this time of year, if Christmas means anything about peace on Earth and good will towards fellow humans, then read The Trial of Saddam Hussein by Al-Ani, and become active in the antiwar and social justice movements.